3 September 2026
The tension between the use of Creative Commons licences and Public Domain Works
Creative Commons licences are widely used tools that enable rights holders, and those with authorisation from rights holders, to permit the reuse of copyright works in copyright without negotiating further permissions.
Many UK-based cultural heritage organisations use Creative Commons (CC) licences as a standardised way to promote access to, and reuse of, images from their collections.
The National Portrait Gallery (NPG) uses the Creative Commons Attribution Non -Commercial No Derivatives licence, (CC-BY-NC-ND. 3.0). This necessitates that the works are attributed, limits use to non-commercial purposes and prohibits the distribution of derivative works: in other words the images must be used as is without adaptions or changes[1].
In contrast Birmingham Museum and Art Gallery use the Creative Commons Zero (CC0 1.0 ) option, which is the most permissive of the Creative Commons licences, enabling use without restrictions [2].
However, cultural heritage institutions that have not yet deployed CC licences might consider the potential conflict between CC licences and the guidance from Creative Commons itself when the underlying material is in the public domain.
The guidance from Creative Commons raises two important questions about public domain works. Their answers suggest that CC licences should not be applied to works that are out of copyright and may not be enforceable where no copyright subsists[3].
Q. “May I apply a Creative Commons licence to a work in the public domain?”
A. “CC licences should not be applied to works in the worldwide public domain. All CC licences are clear that they do not have the effect of placing restrictions on material that would otherwise be unrestricted, and you cannot remove a work from the public domain by applying a CC license to it.”
Instead of a licence, Creative Commons recommends that works in the public domain worldwide should be marked with a CC public domain mark.
Q. “If I take a photograph of another work that is in the public domain, can I apply a CC license to my photo? “
A. “You can apply a CC license to your photograph if your photograph constitutes a work of original authorship, a question that varies by jurisdiction.”
In the UK, US and many other jurisdictions, exact photographic copies of out-of-copyright two-dimensional works are unlikely to qualify for copyright protection. Copyright protects original creative works and, in many jurisdictions, originality depends on the creator’s free and creative choices rather than simply on the skill and labour involved in making the copy. This position on originality is supported by a copyright notice issued by the UK’s Intellectual Property Office:
“according to established case law, the courts have said that copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work”. [4]
If images of art works are not sufficiently original to attract copyright protection, users in many jurisdictions would not need to comply with the terms of the CC licence.
The central problem is that CC licences are copyright licences. They grant advance permission to do acts that would otherwise be restricted by copyright. Where a faithful digitisation of a two-dimensional public domain work is not itself sufficiently original to attract copyright, there may be no copyright right to license, and no copyright infringement claim available if a user ignores the CC licence conditions.
This creates practical and reputational problems for cultural heritage organisations. Applying a restrictive CC licence to such images may suggest that the organisation controls reuse when, in copyright terms, it may not. It may also confuse users, discourage lawful reuse, and sit uneasily with Creative Commons’ own guidance.
As an alternative to using CC licences a bespoke licence that is framed as a contract, rather than a copyright licence could have some value, but it would not recreate copyright in a public domain work. Its effectiveness would depend on contract-law principles, such as whether the user had notice of the terms, whether they accepted them, whether consideration or another basis for enforceability exists, and whether the organisation can identify and pursue the contracting party.
In summary, a bespoke licence can be a useful risk-management tool. It can create obligations for users who clearly accept its terms — for example, by ticking a box, creating an account, agreeing to download terms, or signing a supply agreement but it is unlikely to control reuse by members of the public who never agreed to those terms.
For public domain works, the most transparent approach is to mark the copyright status accurately, use the Public Domain Mark or CC0 where appropriate, and reserve bespoke contractual terms for access to services and assets that the organisation can legitimately control.
Find out more: I will be leading Naomi Korn Associates’ next date of our intermediate level Creative Commons Licensing course on 14 October 2026 (9:30am-1pm). Book your place via the link above or reach out to info@naomikorn.com for further information.
Sources and useful links
[2] Birmingham Museum and Gallery
[3]Creative Commons Organisation FAQs
[4] IPO Copyright notice: digital images, photographs and the internet